1984 Ankaraspor A.S

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2009/A/1984 Ankaraspor A.S. v. Turkish Football Federation, award on jurisdiction of 26 February 2010 Panel: Mr José Juan Pintó (Spain), President; Prof. Denis Oswald (Switzerland); Mr Michele Bernasconi (Switzerland) Football CAS Jurisdiction Decisions of national dimension taken by an independent and duly constituted arbitration tribunal If there is no provision within the deciding body’s statutes or regulations providing for an appeal with the CAS of a decision of national dimension taken by a national arbitration tribunal or if such possibility of appeal is expressly ruled out in the statutes and regulations, the CAS has no jurisdiction to entertain the case. Ankaraspor A.S. (“Ankaraspor” or the “Club” or the “Appellant”) is a Turkish football club with seat in Ankara (Turkey), affiliated to the Turkish Football Federation. The Turkish Football Federation (TFF) is a national football association affiliated to FIFA, with seat in Istanbul (Turkey). On 30th August 2009 the General Assembly of the Turkish football club MKE Ankaragücü SC decided to appoint new members in its Board of Directors. On 7th September 2009 the TFF sent a letter to Ankaraspor in the following terms: “At the meeting of the Board of Directors of Turkish Football Federation dated 06.09.2009 and numbered 57, it was determined that as a result of the resolutions taken at the Extraordinary Meeting of the General Assembly of MKE Ankaragucu Sports Club Association on 30th August 2009, the relation evolved between Ankaraspor A.S. and MKE Ankaragucu Sports Club is in such quality to prevent sportive competition and that it is in violation of TFF Status Articles 18 and 76 as well as Article 17 of the Club Registry Directive. In order to dissolve the said violations, we hereby inform you as a warning that you should remove such resolutions taken at the General Assembly of MKE Ankaragucu dated 30th August 2009 which cause the violation, in 3 days or the shares of Ankaraspor A.S. should be transferred to third parties in such a manner not to prevent sportive competition and to compensate for the public conscious, otherwise the said clubs will be transferred to the Football Disciplinary Board as per the provisions of Football Disciplinary Directive and in order to enable the fair playing order Ankaraspor A.S. will not be accepted in the competitions as a precaution”. CAS 2009/A/1984 2 Ankaraspor A.S. v. TFF, award on jurisdiction of 26 February 2010 The provisions mentioned in the referred letter have to do with the control of several football clubs by the same persons, which is prohibited by the above-mentioned multi-ownership rules of the TFF. On 9th September 2009 the Club answered to the mentioned letter rejecting the alleged statutory infringement. On 11th September 2009 the TFF informed the Club about (i) the transfer of its case to the TFF Disciplinary Committee, (ii) its suspension to take part in the Turkish football competitions from then on, and (iii) about the fact that accordingly, the match against Kayserispor scheduled for the following day would not be played. On 11th September 2009 the Club asked the TFF Disciplinary Committee to leave the mentioned cautionary measure without effect. Such request was rejected. On 14th September 2009 the Club asked again the TFF Disciplinary Committee to remove the referred cautionary measure and to dismiss and close the pending proceedings against the Club as no evidence of statutory infringement committed by the Club existed. On 15th September 2009 the TFF Disciplinary Committee decided to impose the following sanction to the Club in relation with the above mentioned statutory infringements: “As the relationship between ANKARASPOR A.S. and MKE Ankaragücü Sport Club, two of which compete in the same league, possess an obstruct for athletic competition, harms the honesty of the league, and the belief of society upon league’s honesty as per 18th and 76th articles of TFF Status and Club Registry Instruction article 17, our Board has decided to FALL ANKARASPOR A.S. TO A LOWER LEAGUE as per the 45/1st article of Football Discipline Board”. Such decision did not include the grounds on which it was based. On 16th September 2009 the Club filed an appeal against the referred decision before the TFF Arbitration Board, even if the grounds of the decision were not already known by the Club. On 30th September 2009 a hearing before the TFF Arbitration Board took place. The grounds of the appealed decision were notified to the Club therein. The hearing was then suspended to be re-taken on 6th October 2009. On 5th October 2009, and in light of the grounds of the appealed decision received on 30th September 2009, the Club filed new written submissions to defend its position in the case. The hearing’s development continued on 6th October 2009. On 7th October 2009 the TFF Arbitration Board decided to dismiss the Club’s appeal (the “Appealed Decision”). This decision did not include the grounds on the basis of which it was taken, but just the pronouncement of dismissal of the appeal. CAS 2009/A/1984 3 Ankaraspor A.S. v. TFF, award on jurisdiction of 26 February 2010 On 27th October 2009 the Club filed an appeal before CAS against the Appealed Decision, asking CAS to render an award in the following terms: “- To set aside the decision issued by the Turkish Football Federation Arbitration Board on 6 August 2009. - To reinstate Ankaraspor A.S. in the first professional football division of Turkey. - To order the Turkish Football Federation to pay the costs of the present arbitration. - To order the Turkish Football Federation to pay the legal fees and expenses of Ankaraspor A.S. to be determined at a later stage of the present arbitration. - In the alternative, in case CAS finds that a violation of the multi-ownership rules occurred in this case, to provide Ankaraspor A.S. with a reasonable time-limit to take the necessary measures”. In the referred Statement of Appeal the Club announced its intention to apply for the granting of provisional measures. On 5th November 2009 the Club filed the Appeal Brief in which the request for provisional measures was defined in the following terms: “- To stay the execution of the decision issued by the Turkish Football Federation Arbitration Board on 6 August 2009. - To order the Turkish Football Federation to take all appropriate measures for the Ankaraspor A.S. to play its missed games and smoothly catch-up with the schedule of the other teams of the Super League”. On 20th November 2009 the TFF opposed to the request for provisional measures as it understood that (i) such request was inadmissible as it should have been included in Statement of Appeal in accordance with article R48 of the CAS Code, (ii) CAS has no jurisdiction to deal with this case, and (iii) in any case the conditions for the granting of such measures are not met. On 26th November 2009 the TFF asked CAS to organise the present proceedings in two parts, the first dealing with the question of CAS jurisdiction and a second part, if necessary, to deal and decide on the merits of the case. On 30th November 2009 the Appellant asked the Panel to reject the mentioned proposal of proceedings organisation. On 4th December 2009, the Panel agreed to decide first on CAS jurisdiction and if it was the case, on the request for provisional measures, and in the event it found that CAS had jurisdiction, the parties would be granted with a new deadline to argue about the merits. Moreover a 7 days term was given to the Respondent to file a statement regarding jurisdiction. CAS 2009/A/1984 4 Ankaraspor A.S. v. TFF, award on jurisdiction of 26 February 2010 On 11th December 2009 TFF filed the relevant written submissions rejecting CAS jurisdiction in the case. On 18th January 2009 the grounds of the Appealed Decision were filed before CAS. LAW Jurisdiction of the Court of Arbitration for Sport (CAS) 1. Article 186 of the Swiss Loi sur le Droit International Privé states that the arbitral tribunal shall rule on its own jurisdiction (“le tribunal arbitral statue sur sa propre compétence”). 2. Article R47 of the CAS Code reads as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body. An appeal may be filed with the CAS against an award rendered by the CAS acting as a first instance tribunal if such appeal has been expressly provided by the rules applicable to the procedure of first instance”. 3. It is therefore clear that for CAS having jurisdiction in a matter it is required that either the parties have agreed on it or the statutes or regulations of the body issuing the decision foresee the possibility of appeal before CAS. 4. In ruling on CAS jurisdiction the Panel has firstly to state that it is evident that in the present matter there is no agreement between the parties to submit the case to the jurisdiction of CAS, as the TFF has expressly challenged such jurisdiction. 5. The Panel shall therefore examine if the statutes or regulations of the TFF provide that an appeal before the CAS can be filed against a decision of the kind of the Appealed Decision.

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